MEDIA LAWS

Mass Media systems differ from country to

country on the basis of polity, economy, culture
and religion of different societies.
In the Indian scenario and its Parliamentary
Democracy, the media is free but subject to
some reasonable restrictions provided by the
Indian Constitution.
Before the Indian economic liberalisation in
1991, the mass media was under governmental
control to a large extent.
It allowed the media to project only that image,
things and happenings which the Govt. wanted
the public to see.

With the beginning of privatization and

globalization,
the
situation
has
undergone a big change.
Before the era of communication
satellite, communication was mostly in
the form of national media public
and private in India as well as
abroad.
Then, transnational media arrived
bringing
in
an
evolution
of
communication
technologies
like
Satellite delivery and ISDN (Integrated
Services Digital Network)

Consequently, local TV, global films

and global information systems made
the national and international media
scene
very
complex
and
sophisticated.
Due to this unprecedented media
upsurge, it becomes unavoidable to
put certain legal checks and balances
on
the
transmission
and
communication of public content.
Legal checks and balances slander,
libel, sedition, obscenity, censorship
and the contempt of court.

Defamation : Libel and

Slander
Defamation
means
a
public
communication which is intended to
harm the reputation of an individual.
It comprises of both slander (oral
ones) and libel (written defamatory
statements).
In practice, the definition and meaning
of defamation differs from jurisdiction
to jurisdiction.

However, there is a common consensus

that a communication that is just
unflattering, irksome, annoying or
embarrassing or for that matter hurts
only the plaintiffs feeling and sentiments,
does not strictly qualify as defamation.
According to the US Restatement
(Second) of Torts, defamation is a
communication that tends so to harm the
reputation of another as to lower him in
the estimation of the community or to
deter third persons from associating or
dealing with him.

In England, a court puts the inquiry

whether what has been published
would tend in the minds of people of
ordinary sense to bring the plaintiff
into contempt, hatred, or ridicule or to
injure his character.
Other common tests include: lowering
the plaintiffs reputation by exposing
him to hatred, contempt or ridicule
and tending to make the plaintiff be
shunned and avoided.

The elements found common in the

majority of jurisdiction include a
statement, publication to a third party
or parties and the possibility to
damage the plaintiffs status.
Section 499 of Indian Penal Code
provides that:
Whoever by words either spoken or
intended to be read, or by signs or by
visible representations, makes or
publishes any imputation concerning
any person intending to harm, or
knowing or having reason to

believe that such imputation will

harm, the reputation of such person, is
said, except in the cases hereinafter
excepted, do defame that person
Explanation 1:
It may amount to
defamation to impute anything to a
deceased person., if the imputation
would harm the reputation of that
person if living, and is intended to be
hurtful to the feelings of his family or
other near relatives.

Explanation 2: It may amount to

defamation to make an imputation
concerning a company or an
association or collection of persons as
such.
Explanation 3: An imputation in the
form of an alternative or expressed
ironically, may amount to defamation.
Explanation 4: No imputation is said
to harm a persons reputations, unless
that imputation directly or indirectly, in
the estimation of others, lowers the

or intellectual character of that person,

or lowers the character of that person
in respect of his caste or of his calling,
or lowers the credit of that person, or
causes it to be believed that the body
of that person is in a loathsome state,
or in a state generally considered as
disgraceful.

Exceptions

Imputation of truth public which good

requires be making or publishing: It is
not defamation to impute anything,
which is true concerning any person, if
it be for the public good that the
imputation should be made or
published. Whether or not it is for the
public good is a question of fact.

Public conduct of public servants: It is

not defamation to express in good
faith any opinion whatever respecting
the conduct of a public servant in the
discharge of his public functions, or
respecting his character, so far as his
character appears in that conduct, and
no further.

Conduct of any person touching any

public question: It is not defamation to
express in good faith any opinion
whatever respecting the conduct of
any person touching any public
question, and respecting his character,
so far as his character appears in that
conduct, and no further.

Publication of reports of proceedings

of Courts: It is not defamation to
publish a substantially true report of
the proceedings of a Court of Justice,
or of the result of any such
proceedings. A justice of the peace or
other officer holding an enquiry in
open Court preliminary to a trial in a
Court of Justice is a Court within the
meaning of the above section.

Merits of case decided in Court or

conduct of witnesses and others
concerned: It is not defamation to
express in good faith any opinion
whatever respecting the merits of any
case, civil or criminal, which has been
decided by a Court of Justice, or
respecting the conduct of any person
as a party, witness or agent, in any
such case, or respecting the character
of such person, as far as his character
appears in that, and no further.

Punishments

Section 500 of IPC provides

punishment for defamation: Whoever
defames another shall be punished
with simple imprisonment for a term
which may extend to two years which
may extend to two years, or with fine,
or with both.

Example of Defamation case

Defamation Case against Rahman,
Anil Kapoor (2009)
An office bearer of a slum dwellers'
body has filed a defamation case
against music director AR Rahman and
actor Anil Kapoor alleging that the
award winning film Slumdog Millionaire
calls Indians dogs and slum dwellers
slum dogs.

In a complaint filed before a local court

in Patna, Tapeshwar Vishwakarma,
general secretary of Slum-dwellers
Joint Action Committee, has alleged
that the film depicted slum-dwellers in
bad taste as it used the derogatory
and objectionable title Slumdog
Millionaire thus calling Indians dogs
and slum dwellers slum dogs, which is
defamatory.

Chief judicial magistrate Raghvendra

Kumar Singh directed Vishwakarma to
produce evidence in support of his
complaint.
The meaning of Slumdog Millionaire in
Hindi is the millionaire dog of slumdwellers,
Vishwakarma
alleged,
adding that such a name was a
violation of human rights and honour.

Vishwakarma said he has already

approached the national and state
human
rights
commissions
for
necessary action against Rahman and
Kapoor, who portrays the role of a
game show host in the film.
Slumdog Millionaire, which tells the
rags-to-riches tale of an orphan from a
Mumbai slum, won four Golden Globe
awards, including one for Rahman,
and has been nominated for 11
BAFTAs.

Origin of defamation law

The origin of the law of defamation
can be drawn to ancient times.
Although it has evolved significantly,
the contemporary themes are quite
noticeable in its origins,.
The concept of civil law evolved from
the Roman acto injuriarum, which
concentrated more on the intentional
and unjustified hurting of anothers
feelings than harm to public status.

The Roman law heavily influenced the

evolution of the common-law slander
and libel.
During the time of Henry III (1216
1272) in England, libel got its definition
the use of abusive language
addressed to a man publicly or the act
of inciting a crowd to beset a mans
house or to mob the man himself.
Civil and criminal punishments for
defamation were decided by the Court
of Star Chamber in England.

The common law action developed

from the English ecclesiastical courts
inability to adequately deal with the
problem of defamation.
The church courts had the powers to
order the offenders to apologize;
however, the victims usually found
such actions insufficient and took to
duels for revenge or satisfaction.
The Scandalum Magnatum was
passed in 1275 to check this violence.

It introduced two grounds of

justifications for the defamation law
which remains relevant even today:
- The Parliament was eager to stop
insults targeting the nations best
men as it was apprehending threats
to the feudal order. This thought
developed into a concern that
unchecked criticism will throw out
qualified people out of public service.

The government, at that time the

Crown, wanted to suppress the critics
who were threatening its legitimacy.
During that time, the challenge was
put up by those who did not believe in
the idea that the king was ordained by
God to rule over them. By 1676, the
common law came to incorporate the
Scandalum
Magnatum
and
its
successors.

Today, almost all the states in the world

possess a set of civil or criminal law to
guard the individual and institutional
reputation.
Modern jurisprudence is yet to take a
clearly defined stand on the issue of
criminal defamation.
Some of the courts think that this kind of
prosecution is inappropriate.
Others put the argument that the criminal
defamation laws intrinsically infringe
upon the freedom of expression and
hence must be abolished entirely.

Despite these divergent opinions,

various cases and commentaries
suggest a trend towards discouraging
criminal prosecutions for defamation.
Once the incident reaches trial, the
common law has conventionally provided
three defenses to defamation: truth, fair
comment and privilege.
Truth, or say justification, is a total
defense for the statements of the fact. If
the defendants are able to prove the
truth and substance of a defamatory
statement, they are not held liable for
damages.

In Britain, the defendant is just

required to show that the concerned
statement is substantially correct.
This defense of reasonable and fair
comment provides protection to
express the opinions.
Although, it might be easier to argue
and defend fair comments than justify
facts, the defense does not cover all
the opinions and viewpoints.

The defendants are not required to

substantiate that they honestly hold
the opinion. They just have to prove
that a reasonable individual may hold
such an opinion.
Fair comment, unlike justification, may
defeated if the plaintiff is able to prove
that the defamer acted maliciously.
Privilege qualified or absolute is
designed in a manner to protect the
expression made for the common
good.

Absolute privilege provides a total

defense for the people with s public
duty to speak out.
For example, the elected officials can
speak freely in Parliament; lawyers,
judges and witnesses cannot be
prosecuted for what they say in the
court; certain government officials
cannot be held accountable for reports
about state matters.

In the absence of such defense,

defamation threat deters these people
from speaking freely, independently and
in the public interest.
The qualified privilege, on the other
hand, offers protection to the expression
made in public interest except when the
statements are made in malice.
The defense is applicable to the
individuals bound with a social or moral
responsibility to report information, like
the incidence of crime, and to the
authorities having a responsibility to
receive and act upon complaints and
communications.

In English common law, certain

statements like accusing somebody of
lying, doing a crime or suffering from a
despicable disease were considered
libelous per se.
It meant these could not be considered
innocent in meaning and needed no
extra information for the defamatory
meaning to be apparent.
On the other hand,
libel per quod
needed extrinsic evidence, i.e., saying
that a woman is pregnant will not
damage
her
reputation
unless
supplementary facts (for example, her
husband is out of the country for the last
1 year) is made known.

In practice, modern-day sanctions

make no difference between libel per
se and libel per quod.
In case of falsity, the English common
law needed just considerable truth,
which in practice meant that small
inconsistencies were excused.
The substantial truth principle is still
prevalent in the United States;
however, England and other Western
countries
put
the
onus
of
substantiating
truth
on
the
communicator himself.

Many countries do recognize the risk of

providing the government the right to
take legal action against its critics for
defamation.
In Derbyshire County Council vs. Times
Newspapers Ltd. (1993), The England
House of Lords made a ruling that the
common law does not permit a local
authority to entertain an action for libel.
In this case, the County Council made an
attempt to prosecute the Sunday Times
and its staff for two articles that
questioned the management of a
superannuation
fund
and
council
investments.

One year later, following the Derbyshires

lead, the Supreme Court of India, in
R.Rajagopal Vs. State of T.N (1994)
found that The Govt., local authority and
other organs and institutions exercising
power cannot exercise a defamation suit
for damages.
Taking a step further, the Court also
ruled that since the public officials do not
possess the right to privacy, they cannot
ask for damages for statements which
discuss their official conduct and
behavious.

The US Supreme Court provided a

path-breaking test to secure the
freedom of expression. Realising the
limits of the customary truth defense,
New York Times Co. Vs. Sullivan
(1964)
concentrated
on
the
defendants intention and instituted a
malice anf hatred requirement for
defamation.
This test applies particularly to public
officials and moves the burden of
proof onto the plaintiff.

Contrary to the conventional common

law defenses, the case was regarding
and advertisement appearing in the
New York Times
and signed by,
among others, four African American
clergymen who were also among the
defendants.
An
elected police commissioner,
Sullivan, from Montgomery, Alabama,
made
an
allegation
that
the
accusations
included
in
the
advertisement about police violence
against civil rights protestors hurt his
reputation.

The court held the opinion that a

public
official
may
demand
compensation only if he or she proves
that the statement was made with
actual malice, i.e., with knowledge
that it was false or with reckless
disregard for whether it was false or
not.
By transferring the burden
and
altering the mens rea for defamation,
this case spared innocent mistakes
while protecting political criticism born

The Supreme Court of India, mentioned

and dwelt upon Sullivan
at a great
length in R.Rajagopal Vs. State of T.N
(1994).
This case comprised the publication of
the autobiography of a person convicted
of murder which alleged criminal links
with prison officials.
Accepting that the Indian Constitution
might not guard as much expression as
the First Amendment of the United
States, the court held the opinion that the
media plays a significant role in the form
of a government watchdog.

Not mentioning the term malice

explicitly, it observed that the public
officials do not possess the right to
take judicial remedy for damages
regarding official duties except when
they prove that the defendant
published information with reckless
disregard for the truth.

The present-day problems of libel and

slander comprise jurisdictional and
other matters born of Internet
Communication.
In the landmark 2002 case Dow Jones
and Co. Vs. Gutnick, the High Court
of Australia held that an Australian
could sue an American publisher in
Australia for defamation, based on the
publication of online statements.
In other words, the defamation
occurred at the place of reception and
not just at the place of publication.

Another problem involves the effect of

Internet on the common law rule that
a re-publisher of libel or slander was
just as culpable as the originator.
The US Congress in 1996 adopted a
provision protecting Internet service
providers from liability for libels
propagated by users in electronic mail
messages or on electronic bulletin
boards.
However, few countries have gone
that far in immunizing the service
providers to that extent.

Try answer these

What are the two forms of
defamation?
Give the origin of the law of
defamation.
Why modern law is yet to adopt a
clearly defined stand on criminal
defamation?
What is the difference between libel
per se and libel per quod in the
English common law?